U.S. Citizenship and Immigration Services issued a new policy memo saying that, as a general matter, immigrants seeking permanent residency should apply through consular processing outside the United States rather than seek adjustment of status from within the country. The memo says adjustment of status under Section 245 of the Immigration and Nationality Act is “a matter of discretion and administrative grace” and an extraordinary form of relief, not a routine alternative to the normal immigrant visa process.
The memo, PM-602-0199, says USCIS is reaffirming a “consistent and longstanding approach” and directing officers to consider all relevant factors on a case-by-case basis when deciding whether an applicant deserves a favorable exercise of discretion. It says the agency will weigh the totality of the circumstances, including immigration violations, fraud, false testimony, failure to comply with visa or parole conditions, and other conduct that may affect whether a person is suitable for permanent residence.
USCIS spokesman Zach Kahler said the agency is “returning to the original intent of the law” and said a person in the United States temporarily who wants a green card should return home to apply, except in extraordinary circumstances. He said the policy is meant to reduce incentives for people to remain in the United States illegally after being denied residency and to preserve USCIS resources for other priorities such as visas for crime and trafficking victims and naturalization cases.
The memo says Congress built a detailed system for immigrant visas and adjustment of status, but that the ordinary pathway for most people seeking to live permanently in the United States is immigrant visa processing abroad through the State Department. It argues that people admitted as nonimmigrants, or paroled into the country temporarily, are generally expected to leave when their authorized stay ends and pursue permanent residence from outside the country if they later want to immigrate.
Under the new guidance, USCIS officers are instructed to treat failure to depart as expected, or attempts to remain after a temporary stay, as highly relevant negative factors in discretionary cases. The memo says officers must still balance favorable and unfavorable factors, such as family ties, immigration history, and moral character, before deciding whether an applicant warrants the benefit.
The policy also says denial notices must explain the specific reasons for rejection in writing and, when discretion is the basis for denial, must spell out why negative factors outweighed positive ones. USCIS said the memo is intended to guide its officers and does not create any new right or benefit that can be enforced in court.
The shift could affect some people already in the United States on temporary visas who later seek green cards through adjustment of status. The memo says USCIS may issue more category-specific guidance later, but it does not eliminate discretion in individual cases and acknowledges certain statutory exceptions and non-discretionary adjustment categories.
Kishor Panthi
View More PostsKishor Panthi is the founder and editor-in-chief of Khasokhas and NepYork. He is the author of three books, “Kampan,” "UNTRANSLATABLE" and “Zero Mile.” He writes about social issues, immigration, and politics.
